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USMC | DRB | 2003_Marine | MD03-00339
Original file (MD03-00339.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-PFC, USMC
Docket No. MD03-00339

Applicant’s Request
The application for discharge review was received on 20021219. The Applicant requests that the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I am requesting that my discharge be upgrade from other than honorable to Honorable or General under Honorable conditions

2. I am requesting that my re enlistment code be changed”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated December 5, 2002
Applicant’s DD Form 214
Letter from Applicant, dated July 26, 2001
Letter from Applicant’s husband, dated July 26, 2001
Nine pages from Applicant’s medical record
Letter from Chaminade University of Honolulu, dated July 10, 2001 (2 pages)
Certificate of Commendation, dated February 27, 2002
Letter of appreciation, dated February 7, 2002
Letter from Assistant Chief of Staff, Marine Corps Community Service, dated August 12, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960814 - 970622  COG

 Period of Service Under Review :
Date of Enlistment: 970623               Date of Discharge: 010207

 Length of Service (years, months, days):

         Active: 03 07 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (7)                       Conduct: 3.9 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, Letter of Appreciation

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

970624:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
981007:  Counseled for deficiencies in performance and conduct. [Failure to obey a lawful order given by an NCO regarding specific work to be completed.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981125:  NJP for violation of UCMJ, Article 92 (8 specs):
 Specification 1: Made unauthorized long distance call on government phone on 0529, 980723, after told not to by SSgt C_.
Specification 2: Made unauthorized long distance call on government phone on 0721, 980727, after told not to by SSgt. C_.
Specification 3: Made unauthorized long distance call on government phone on 1116, 980727, after told not to by SSgt. C_.
Specification 4: Made unauthorized long distance call on government phone on 1220, 980727, after told not to by SSgt. C_.
Specification 5: Made unauthorized long distance phone call on government phone on 1347, 980727, after told not to by SSgt C_.
Specification 6: Made unauthorized long distance call on government phone on 1351, 980727,after told not to by SSgt C_.
Specification 7: Made unauthorized long distance call on government phone on 1542, 980727, after told not to by SSgt C_.
Specification 8: Made unauthorized long distance call on government phone on 0704, 980728, after told not to by SSgt C_.
Awarded forfeiture of $245.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
990105:  Counseled for deficiencies in performance and conduct. [Dereliction of duties as the battalion mail clerk. This incident resulted in the revocation of your assignment as the battalion mail clerk.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000626:  Counseled for deficiencies in performance and conduct. [Failure to maintain adequate childcare. You are a Marine 24 hours a day, 7 days a week.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant’s rebuttal to counseling is in the service record.
001205:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 001127, tested positive for MDA/MDMA.

 001219:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully use a controlled substance, to wit: “Ecstasy.”
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Restriction suspended for 60 days. Not appealed.
010104:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.
010105:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct. The factual basis for this recommendation was your wrongful use of ecstasy, as supported by NAVDRUGLAB SAN DIEGO CA naval message 051520Z Dec 00, failure to obey an order or regulation (seven offenses), two nonjudicial punishments, and three page 11 entries.

010108:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010112:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010129:  SJA review determined the case sufficient in law and fact.
010411:  GCMCA [Commanding General, Marine Corps Base Hawaii] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010207 under other than honorable conditions for misconduct due to drug abuse (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 Issue 1. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s medical condition at the time does not mitigate her misconduct. Relief denied.
The Applicant’s discharge characterization accurately reflects her service to her country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which she was discharged. Relief denied.

Issue 2. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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